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Aboriginal Law Bulletin (ALB)
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Hennessy, Peter --- "R v Barritt and Seears (Writs of prohibition and certiorari - fairness of orders of stipendiary magistrate - relationship between Aboriginal Legal Services and their clients) -" [1985] AboriginalLawB 6; (1985) 1(12) Aboriginal Law Bulletin 10


R v Barritt and Seears

Writs of prohibition and certiorari - fairness of orders of stipendiary magistrate - relationship between Aboriginal Legal Services and their clients.

R v Barritt and Seears

Supreme Court of the Northern Territory (Muirhead J)

31 May, 1984

Casenote by Peter Hennessy

This matter came before the Supreme Court following a decision by Mr. Barritt SM to order the issuing of a mesne warrant and bail forfeiture of $750 against the prosecutor, Alan Jungari Philomac.

The prosecutor in this Supreme Court action, Alan Jungari Philomac, had been charged with causing grievous bodily harm and a number of other offences. He had been given bail with a default for non-appearance of $750. The matter had come before the court on three occasions and each time had been adjourned on the application of the prosecution. When the matter came before the court on the fourth occasion the Crowr was ready to proceed although a one dal adjournment may have been required so the all prosecution witnesses were available However, the prosecutor did not appear. Mr Corker, a Solicitor employed by the Centre Australian Aboriginal Legal Aid Service appeared for the prosecutor and applied for an adjournment explaining that his client had been bannished from his community al Derry Downs and his exact whereabouts were unknown. He sought a one month adjournment. The Magistrate queried whether Mr. Corker had had any instructions to act on behalf of his client. Mr. Corker explained that he had appeared for the prosecutor on the previous occasions relating to the matter at hand and had received advice from afield officer about the departure of the prosecutor from Derry Downs. Mr. Corker said that he did not intend to call evidence to substantiate this fact and the Magistrate refused to accept the evidence of it from the Bar table. The following exchange occured.

His Worship: There is no basis upon which I am in anyway called upon to accept as matter of fact what is said from the Bar table.

Mr. Corker: yes, but your Worship does on many, many occasions accept what is said from the Bar table by a member of the legal profession.

His Worship: I do on some occasions, and on other occasions which may or may not be mentioned at the time, I do not accept.

The Magistrate then refused to allow a short adjournment to allowthe field officer to be called and directed a mesne warrant to be issued and ordered the payment by the prosecutor of $750 to the N.T. Government.

The prosecutor applied to the Supreme Court for an order of a writ of prohibition to prohibit the execution of the mesne warrant and an order to show cause why a writ of certoriari should not be issued to remove the proceedings to the Supreme Court and to remove the warrant issued in the order for payment of money.

Justice Muirhead, in granting the order sought, made the following observations:

It is common ground in this Territory that Aboriginal people released on bail to outlying settlements or outstations are frequently brought i n by field officers. Without this system which has now been operating for years, the granting of bail to many Aboriginal persons charged would be impractical. Many Aboriginals keep no record of dates and many lack full understanding of their obligations and the bail undertaking ...

... I do not intend to deal with the relationship between solicitors acting for the Central and Northern Australian Aboriginal Legal Aid Services and Aboriginals who become involved with the law. It is probably unique. The service was set up to provide legal representation for Aboriginals in this part of the world, of varying degrees of sophistication. Allowances must be made for the fact that representation by the service will frequently occur by reason of circumstance rather than by specific instruction. This causes difficulties at times which must be understood. Solicitor's offices in this huge area are concentrated in Alice Springs. Many of the Aboriginals the service was designed to protect, have little concept of the functions of the legal profession and no means of seeking representation. If these matters are not heeded- and myexperience is that theygenerallyare-the Legal Aid Services cannot render the protection they were designed to render ... The responsibilities of counsel to act and make submissions to protect the client do not cease merely by reason of the fact that for one reason or the other the client dons not attend on the day fixed for hearing, be it byway of committal proceedings or trial. Until instructions are terminated or until counsel announces that he has no further instructions, or is given leave to retire, the obligations of counsel in my view should endure. In the absence of a challenge to the factual submissions of counsel as to his client's whereabouts or circumstances the practice of the courts is to accept the submissions of council as being made in good faith. That does not mean that such submissions must be accepted but it is unusual and undesirable fora court to hastily challenge or ignore submissions put forward in these circumstances.

... It is clear. I think, that the Magistrate erred in the implicitt challenge to Mr. Corker's submissions and his right to make submissions. He should at least have stood the matter over for a short time to enable further material to be put before him before at least forfeiting bail. I am satisfied that in making those orders including the forfeiture of bail the Magistrate failed to act fairlyand in accordance with law.

I therefore make absolute the order removing those proceedings to this court and I direct that the orders pursuant to which the warrant was issued and bail forfeited be quashed. The warrant itself must be quashed. The proper course for the Crown now to adopt is to make early application to another Magistrate for the issue of a means warrant in respect of the prosecutor's failure to appear in 18 May, 1984. The Crown may then, if so advised, request forfeiture, but on that occasion those vested with the responsibility of representing the accused and his interests must be given the opportunity of making the usual submissions and calling such evidence as is relevant to the issue.

Ms. Carolyn Simpson, Barrister, instructed by the CAALAS appeared for the prosecutor, Alan Jungari Philomac.

Mr. T. Doman of the Crown Law Department Alice Springs appeared on behalf of George Henry Seears, Sergeant of Police.


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